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State-level minimum wage increases leave domestic workers behind

Critics say culture and race are factors in 18 states where home care workers are excluded from wage laws

Valerie Redmond, 65, started her career in Pennsylvania, working in private homes to care for children, seniors and people with disabilities. But she noticed a difference in working conditions and wage protections when she moved to Georgia, one of the 18 states whose minimum-wage laws exclude home care workers, revealing state-by-state cultural and policy variances in the domestic work sector.

“It was a shock to me when I moved from Pennsylvania to Georgia. Every state is different,” she said. “There’s often no recourse for people who do domestic work in Georgia who may be denied their wages or abused.”

While Redmond’s arrangement with her employer — 10 hours of work per week in exchange for a fully paid apartment and utilities — works well for her, she said many other domestic workers’ conditions are pretty bad.

A recent report by the National Employment Law Project (NELP) notes that in those 18 states, home care workers are entitled only to the lower federal minimum wage of $7.25 per hour, while workers in other sectors are entitled to the higher state minimum wage.

As support for minimum-wage hikes at the state and federal levels swells throughout the country, home care workers continue to be excluded from some states’ increases. Delaware, Rhode Island and West Virginia recently raised their minimum wage, but home care workers in those states won’t see any change.

The trend reveals that a federal minimum wage increase, which would trump lower state minimums and raise wages for workers across the board, continues to be important for domestic workers.

“The persistence of state-level exclusion for home care workers means that advocates and policymakers have much more work ahead to not only raise the floor but to bring workers up the floor — and, of course, to safeguard the rights we have won,” said Sarah Leberstein, a staff attorney with the NELP. She added that a federal minimum wage increase could help raise wages for all domestic workers, regardless of where they live, and improve their economic conditions.

In April the U.S. Senate failed to increase the federal minimum wage from $7.25 to $10.10. A Democratic wage hike proposal would have phased in the higher wage over two years and would have raised the tipped minimum wage (now $2.13 per hour for servers and other tipped workers).

There is no indication that a federal minimum wage increase will be enacted this year. Activists seeking a federal minimum wage increase say it should be $10.86 in order to keep pace with inflation.

Remnants of slavery?

Women fill two-thirds of minimum-wage positions, and the domestic work sector is one of the fastest growing low-wage sectors in the United States, according to the National Women’s Law Center.

Experts note that those 18 states’ minimum wage policies fall in line with a long history in the United States of excluding domestic workers from wage and hour protections. The original Fair Labor Standards Act (FLSA), enacted in 1938, excluded all domestic workers — nannies, caregivers, housekeepers — from its minimum wage and overtime requirements. Legal scholar Juan Perea has argued that the FLSA’s original exclusion of domestic workers was a “concession to Southern racism.” At the time of the FLSA’s enactment, many domestic workers in the South were black, and Southern legislators refused to agree to the law if domestic workers were included, he wrote in his 2010 essay “The Echoes of Slavery.”

In 1974 the FLSA changed to include some domestic workers, though it still excluded home care workers who act as “companions.” For nearly 30 years, this companionship exemption denied overtime coverage to the more than 2 million workers employed by home care agencies in the United States — most of whom are women of color (PDF), according to the National Domestic Workers Alliance.

Barack Obama’s administration approved changes to federal regulations in September 2013 that reform the companionship exemption and will include home care workers under federal overtime and minimum wage laws. These new regulations take effect in 2015.

There are some states, such as Maryland, that do include domestic workers in all their wage and overtime protections. Sheena Wadhawan, legal program manager and attorney at CASA de Maryland, which advocates for immigrant workers’ and women’s issues in the Washington-Maryland area, agreed that the decision to exclude domestic workers from minimum wage and overtime regulations has racial roots.

“Voters in these 18 states need to question why minimum wage laws treat domestic workers differently than any other workers,” she said. “We should keep in mind the history of who traditionally did this work and who does it now — largely women of color. There is no rational or legal basis for excluding domestic workers from minimum wage increases.”

Case for exceptions

Some disability-rights advocates have opposed wage hikes and overtime protections for home care workers, arguing that many homebound people who are ill or have disabilities may not be able to pay a higher wage. Many Americans with disabilities are working in low-wage jobs and experience higher levels of poverty than the general population.

However, many home care workers are paid through state funds, not necessarily by the ill or elderly individuals they care for. Some states, such as Pennsylvania strike a balance by including home care workers who are paid by the state or by agencies under wage and hour laws but exempt home care workers who are privately employed.

Redmond believes states like Georgia that allow a lower wage for domestic workers are clinging to a legacy of slavery. “I have seen the distinction between working in a Northern state and Georgia, and Georgia comes from conversation of slavery,” she said. “People believe that this is the way it is.”

Advocates for domestic workers’ rights plan to continue pushing for higher wages at the state and federal levels. Ashwini Jaisingh, a lead organizer at CASA de Maryland, said, “Domestic workers do such critical work caring for our loved ones and homes, yet many are underpaid and not even able to care for their own families.”

“They should be treated with the same dignity and respect with which employers want their aging parents to be treated. Including all domestic workers within all states’ wage and hour provisions is an important step to improve the quality of life for such an essential workforce in our society.”